Citation Nr: 0708021
Decision Date: 03/16/07 Archive Date: 04/09/07
DOCKET NO. 95-26 820 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an initial evaluation in excess of 40 percent
disabling for the veteran's service-connected
gastrointestinal disorder manifested by duodenal ulcer.
REPRESENTATION
Appellant represented by: Cindy Smith, Attorney
ATTORNEY FOR THE BOARD
J. M. Macierowski, Associate Counsel
[The issue of entitlement to waiver of recovery of
nonservice-connected disability pension benefit overpayment
in the calculated amount of $13,476.00 is the subject of a
separate decision.]
INTRODUCTION
The veteran served on active duty from September 1955 to
September 1957, from November 1957 to August 1961, and from
June 1965 to May 1967. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from the Department of
Veterans Affairs (VA) Regional Office in St. Petersburg,
Florida (RO).
A June 2003 decision of the Board denied entitlement to an
initial evaluation in excess of 40 percent disabling for
service-connected gastrointestinal disorder manifested by
duodenal ulcer. The veteran appealed this decision to the
United States Court of Appeals for Veterans Claims (Court).
The June 2003 Board decision was vacated and remanded by the
Court in August 2005.
A letter was sent to the veteran and his attorney on October
14, 2005, in which he was given 90 days from the date of the
letter to submit additional argument or evidence in support
of his appeal prior to the Board's readjudication. A letter
was received from the veteran's attorney in January 2006,
requesting that the Board remand the veteran's appeal to
obtain additional VA treatment records and schedule a new VA
examination. The veteran's case was remanded to the RO in
February 2006, and, the appropriate development having been
completed, is now returned to the Board for appellate review.
FINDING OF FACT
The veteran's gastrointestinal disorder manifested by
duodenal ulcer is manifested by epigastric pain which is not
fully relieved by daily prescription medication regimen;
periodic nausea and vomiting, recurrent hematemisis and
melena, and evidence of anemia and weight loss.
CONCLUSION OF LAW
The criteria for an initial evaluation of 60 percent
disabling for the veteran's service-connected
gastrointestinal disorder manifested by duodenal ulcer have
been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002);
38 C.F.R. § 4.114, Diagnostic Code 7305 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
With respect to the veteran's claim for entitlement to a
higher initial evaluation for gastrointestinal disorder
manifested by duodenal ulcer, VA has met all statutory and
regulatory notice and duty to assist provisions. See
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326
(2006). Because the pertinent regulations concerning VA's
duties to notify and assist were not enacted until 2000,
notification of these duties prior to the initial
adjudication of the veteran's claim was impossible. However,
a letter dated in February 2005 satisfied the duty to notify
provisions; an additional letter was sent in June 2006.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). The veteran's
service medical records, VA medical treatment records, and
identified private medical records have been obtained. The
veteran was also accorded VA examinations in January 1994,
October 1996, May 2002, August 2005, and July 2006.
38 C.F.R. § 3.159(c) (4). There is no indication in the
record that any additional evidence, relevant to the issues
decided herein, is available and not part of the claims file.
See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there
is no indication that any failure on the part of VA to
provide additional notice or assistance reasonably affects
the outcome of the case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, No. 02-1077
(U.S. Vet. App. Dec. 21, 2006); see also Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
Disability ratings are determined by the application of the
VA's Schedule for Rating Disabilities (Schedule), which is
based on the average impairment of earning capacity.
Separate diagnostic codes identify the various disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2006). Pertinent
regulations do not require that all cases show all findings
specified by the Schedule, but that findings sufficient to
identify the disease and the resulting disability and above
all, coordination of the rating with impairment of function
will be expected in all cases. 38 C.F.R. § 4.21 (2006).
The primary concern in a claim for an increased evaluation
for service-connected disability is the present level of
disability. Although the overall history of the disability
is to be considered, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is
based on the assignment of an initial rating for a
disability, following an initial award of service connection
for this disability, the rule articulated in Francisco does
not apply. Fenderson v. West, 12 Vet. App. 119 (1999).
Instead, the evaluation must be based on the overall recorded
history of a disability, giving equal weight to past and
present medical reports. Id.
Service connection for gastrointestinal disorder manifested
by duodenal ulcer was granted by a November 1994 rating
decision, and a 40 percent evaluation assigned under the
provisions of 38 C.F.R. § 4.114, Diagnostic Code 7305,
effective September 29, 1989. Effective May 31, 2001, the
criteria for duodenal ulcers were amended. Compare 38 C.F.R.
§ 4.114, Diagnostic Code 7305 (2000) with 38 C.F.R. § 4.114,
Diagnostic Code 7305 (2006).
VA's Office of General Counsel has determined that amended
rating criteria can be applied only for periods from and
after the effective date of the regulatory change. The Board
can apply only the prior regulation to rate the veteran's
disability for periods preceding the effective date of the
regulatory change. See VAOPGCPREC 3-00; 65 Fed. Reg. 33422
(2000); see also Kuzma v. Principi, 341 F.3d 1327,
1328-29 (Fed. Cir. 2003). The Board notes that the September
1995 statement of the case, as well as the August 1996,
November 1996, July 2002, and August 2006 supplemental
statements of the case, adjudicated the veteran's claim under
the criteria set forth by the pertinent regulations prior to
the regulatory change. However, as a 40 percent disabling
evaluation is already assigned for the veteran's service-
connected gastrointestinal disorder manifested by duodenal
ulcer, and the criteria for the 60 percent disabling
evaluation was not amended, the Board concludes that the
veteran was not prejudiced, and will proceed with
adjudication of his claim under both sets of criteria.
Under the original criteria in effect prior to May 31, 2001,
a 40 percent disabling evaluation was warranted when the
duodenal ulcer was moderately severe, with impairment of
health manifested by anemia and weight loss, or recurrent
incapacitating episodes averaging 10 days or more in duration
at least four or more times a year. 38 C.F.R. § 4.114,
Diagnostic Code 7305 (2000). Under the revised criteria in
effect beginning May 31, 2001, a 40 percent evaluation is
warranted when the duodenal ulcer is moderately severe,
causing intercurrent episodes of abdominal pain at least once
a month partially or completely relieved by ulcer therapy,
mild and transient episodes of vomiting or melena. 38 C.F.R.
§ 4.114, Diagnostic Code 7305 (2006).
Under both sets of regulations, the maximum schedular
evaluation, of 60 percent disabling, is warranted when the
duodenal ulcer is severe, causing pain only partially
relieved by standard ulcer therapy, periodic vomiting,
recurrent hematemisis or melena, with manifestations of
anemia and weight loss productive of definite impairment of
health. Id.
In this case, the Board concludes that the evidence warrants
a 60 percent evaluation under Diagnostic Code 7305 for the
entire appeal period. While the veteran's symptomatology has
varied in severity, overall it has been severe enough to
satisfy the criteria for the maximum evaluation. The record
contains evidence dating from at least 1989 which shows that,
despite a prescription drug therapy regimen, the veteran
continued to experience abdominal pain, periodic vomiting and
nausea. He has experienced gastrointestinal bleeds which
caused him to be hospitalized, and on some occasions,
required transfusions, in 1989, 1991, 1993, and 2004.
Recurrent melena was reported by the veteran, as noted in
private treatment records dated in January 1990, VA treatment
records dated in December 2005, and on VA examination in
August 2005. Hematemisis was noted in September 1989 and
again in September 2006.
Additionally, there is evidence that the veteran has
experienced both anemia and weight loss at various points of
the appeal period. Specifically, private treatment records
from January 1991 to September 1991 show evidence of weight
loss and anemia. The January 1994 VA examination noted that
while the veteran had recovered from his most recent GI
bleed, in which he required 12 units of blood to be
transfused, he may still be anemic. Private treatment
records from January and March 1994 also show that the
veteran continued to experience anemia. An August 1999 VA
outpatient record noted this history of anemia and that the
veteran continued to experience weakness. Weight loss was
noted on VA examination in August 2005. Finally, on VA
examination in July 2006, the veteran's levels of hemocrit
and hemoglobin were abnormally low.
Ultimately, the weight of the evidence shows that the
veteran's symptomatology has, as noted by the July 2006 VA
examiner, caused a significant impact on his occupational
activities, to include decreased concentration, lack of
stamina, weakness, and pain. Multiple physicians, including
a private physician in January 1994, and VA physicians in
June 2002 and August 2005, have commented on the consistency
and severity of the veteran's condition; they note that he
will be required to remain on prescription medication for the
remainder of his life to control the symptomatology, but that
he has continued to experience additional gastrointestinal
bleeds and other upsurges in severity despite the medication.
The most recent treatment records demonstrate that the
veteran's symptomatology continues to increase in frequency,
and laboratory tests, including a July 2004 upper
gastrointestinal endoscopy and a February 2006 x-ray, showed
that the veteran's duodenal bulb is scarred, and that he
continues to experience active duodenal ulcers. Tracing the
development of his condition since the effective date of the
award of service connection, and considering the current
objective evidence, it appears that there is little chance
for the veteran's condition to improve. Accordingly, the
initial evaluation for the veteran's service-connected
gastrointestinal disorder manifested by a duodenal ulcer
warrants the maximum schedular evaluation of 60 percent.
ORDER
An initial evaluation of 60 percent for service-connected
gastrointestinal disorder manifested by duodenal ulcer is
granted.
______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs